James Q. Whitman, LAPA Fellow; Yale Law School

Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice

Please join us for a LAPA Seminar with James Q. Whitman, Ford Foundation Professor of Comparative and Foreign Law at Yale Law School. His commentator is Leo Katz, Frank Carano Professor of Law at the University of Pennsylvania Law School.

LAPA's seminar format assumes that seminar participants have familiarized themselves with the paper in advance. The commentator opens the session by summarizing the main themes in the paper and presenting some topics for discussion. The author then has the right of first response before we open to the floor for questions. The seminar will end with a brief reception, giving everyone a chance to mingle and meet.

Abstract: "American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh. This Article addresses this troubling state of affairs. The Article contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorial justice, it argues, has a less far-reaching presumption of innocence than American justice does. Yet if continental justice puts less weight on the rights of the innocent it puts more on the rights of the guilty: While its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy. The continental approach produces forms of criminal procedure that can shock Americans. Continental trial in particular often seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox. Yet the continental approach has contributed to the making of a significantly more humane criminal justice system than ours. Moreover the continental approach is better suited to cope with the rise of new forms of scientific investigation. The Article pleads for a shift away from the American culture of rights for the innocent toward a greater concern with continental-style rights for the guilty. It closes with an Appendix assessing the Knox case."

James Q. Whitman is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School, where he teaches comparative law, criminal law, art law and legal history. He is the author of several books, including Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe (Oxford, 2004), The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (Yale, 2008), and The Verdict of Battle: The Law of Victory and the Making of Modern War (Harvard, 2012). He has also published extensively in scholarly journals. Professor Whitman received a B.A. and a J.D. from Yale, an M.A. from Columbia, and a Ph.D. from the University of Chicago. Following law school, Whitman clerked for Judge Ralph K. Winter of the U.S. Court of Appeals for the Second Circuit. He has been a visiting professor at a number of American and foreign universities, and received fellowship support from a variety of prestigious American and foreign sources. At Princeton, his project will examine the breakdown of the enforcement of social hierarchy in the making of modern legal and social forms.

Leo Katz's work focuses on criminal law and legal theory more generally. By connecting criminal law, moral philosophy and the theory of social choice, he tries to shed light on some of the most basic building block notions of the law—coercion, deception, consent, and the use and abuse of legal stratagems, among others. Katz is the author of several books: Bad Acts and Guilty Minds: Conundrums of the Criminal Law (University of Chicago, 1987); Ill-Gotten Gains: Evasion, Blackmail, Fraud and Kindred Puzzles of the Law (University of Chicago, 1996); and most recently Why the Law Is So Perverse (University of Chicago, 2011), which he researched with the support of a Guggenheim Fellowship. Together with Stephen Morse and Michael Moore, he edited Foundations of the Criminal Law (Oxford, 1999).